Rajasthan High Court - Jaipur
Bal Mukund Sharma And Ors vs State (J D A ) And Anr on 6 July, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR DB Special Appeal (W) No.855/2012 Bal Mukund Sharma & Ors. Vs. State of Rajasthan & Anr. Date:06/07/2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Kamlakar Sharma, Sr. Adv. with Mr. Rahul Choudhary, for appellants. Heard on the question of admission. The land was acquired way back in 1964. Award was also passed on 9.6.1964 with respect to Plot Nos.C-132, 133, 134, 135 situated at Sahakar Marg, Lal Kothi Scheme, Jaipur. The land cannot be allotted in such cases has been laid down by the Apex Court in number of cases, such as, Jaipur Development Authority Vs. Radhey Shyam (1994) 4 SCC 370; Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain (1997) 1 SCC 35 and recently in Jaipur Development Authority & ors. Vs. Vijay Kumar Data & Anr. (2011) 12 SCC 94. The Apex Court in Vijay Kumar Data (supra) has laid down thus: 28. What is most significant is that till the disposal of the writ petitions by the learned Single Judge, the seeds of the so called policy decision, which was allegedly circulated vide letter dated 6.12.2001 had not even been sown. A reading of Annexure `C, which forms part of the written arguments filed by Shri M.L. Lahoty, learned counsel for respondent Vijay Kumar Data, shows that the Committee of Ministers was formed vide order dated 30.10.2001 to suggest solution of the problems in the regularization of illegal constructions/encroachments of land under the Lal Kothi and Prithviraj Nagar Schemes in relation to which several cases were pending in different Courts. The recommendations made by the Committee were given the colour of the Governments decision (though, no material has been placed on record to show that the recommendations made by the Committee were accepted by the State Government) as would appear from letter dated 6.12.2001 written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur. That letter reads as under:
GOVERNMENT OF RAJASTHAN URBAN DEVELOPMENT DEPARTMENT No.F.3(32)UDD/3/2001 Jaipur Dated: Dec. ,2001 6 DEC 2001 The Secretary, Jaipur Development Authority, Jaipur.
Subject: Regarding regularization of illegal construction / encroachment under Lai Kothi Scheme.
Sir, In the above context it is stated that under the Ministerial Secretariat Order No.F. 4(1)M.M./99 dated 30th October, 2001 for the solution of problems rising from comp1ications of regularization of illegal construction/encroachments under Lal Kothi and Prithviraj Nagar Schemes, a sub committee was constituted. This Sub Committee comprised of Minister, Urban Development as convenor and Home Minister, Finance Minister, Minister for Industries and State Minister for minerals were nominated its members and Secretary Administration, Urban Development Department was nominated as member secretary of this sub committee. The Committee discussed in detail over various aspects of Lal Kothi Scheme and after taking into consideration the entire facts unanimously took the following decision:
1. As per the awards pronounced so far under the Lal Kothi Scheme, whatever amount is due for payment to the awardees, that may be paid to the concerned cultivators.
2. The awardees who besides compensation amount could not be allotted plot of land or after allotment were cancelled, may now be allotted per awardee a plot measuring 250 square yards in other schemes of J.D.A. Such plot be awarded at rate of 25 percent of the prevalent residential reserved rate under the scheme.
3. The developed and vacant plots be regularized in the similar manner. These may be regularized at the following rates:
A) up to 200 sq.yards 25 percent of the reserved residential rate.
B) More than 200 sq. yards 35 percent of the reserved residential rate
4. In the remaining cases of worth regularizing plots of Everest and Salt colonies (which are about 80 plots) which could not be regularized inspite of decision of 1976, the rate of regularization is fixed at 25 percent of the reserved residential rate.
5. In connection with regularization of the plots the amount on the basis of self-assessment be asked to be deposited by 28.2.2002.
6. Those who fail to get regularisation within stipulated time limit, it is decided to afford them opportunity of depositing the amount by 31.3.2002 with 5 per cent, additional amount to obtain regularization. After expiry of the said date, it is decided that no regularization be done and after notice to such occupants over the plots their construction shall be demolished and such plot's shall then vest in the Authority and for the purpose of rehaoi1itation they shall be allotted as residential plots under other schemes of Jaipur Development Authority.
7. The plots which are not regularized under this order, they be finally refused and their list be published in the news paper, and possession on the site if any, be removed.
8. The awardees/sub awardees whose allotments have not yet been cancelled, but they have construction on site of their plots, it is decided that their earlier allotment be cancelled and treating the plot as acquired, on the basis of possession, be regularized under this order. I t is decided to adjust the amount deposited earlier. On interest shall be chargeable on this amount.
9. In the cases wherein litigation is pending in courts, in connection with them it is decided to follow action as under:
(a) Such of the vacant plots where there is stay order from the court or any adverse order etc. in force and which have been taken over in possession by the Jaipur Development Authority as per rules, it is decided to sell them through auction. It is decided to draw a list or such plots.
b) In cases of acquired or under acquisition and / plot of land/constructed building which is under effect of any order or stay order from the court, in connection with them it is decided to follow action as under:
Where in connection with acquired or under acquisition land/plot of land/constructed building stay order/order for status quo is issued in favour of cultivator, it is decided to follow regularization proceeding in favour of such cultivator treating the land/ plot of land/ constructed building in his favour. I f the order/ stay order/ order for status quo is in favour of J.D.A. then treating the concerned plot/land to be of J.D.A. it is decided to follow further taken and such plot/land is decided not to be regularized. On the contrary if such orders are in favour of other person and he is in possession, and he withdraws the case from the court, then regu1arization of that plot / land be done in his favour. In cases of plots where J.D.A. has gone in appeal and no decision is taken by the court in favour of the Authority then honouring the judgment of the court below, case shall be withdrawn by the J.D.A. the plot/ land/ constructed building is decided to be regularised in favour of concerned person. In such cases the basis of regularization will be physical possession. In connection with regularization on above basis, the Samjhota Samiti will review each and every case and give its decision which shall he binding on J.D.A.
10. In connection with land under acquisition, land of 9 bigha 6 biswa of Pratap Nursary, 5 bigha of Anand Nursary, 2 bigha 12 biswa of Kailashwati, Maharchand & Sons is decided not to acquire. Simultaneously it is decided to regularize on payment of 25 percent of reserved residential rate of these land.
No decision was taken in connection with land of Amrudon Ka Bagh. It is thought proper to take any action after decision from Delhi High Court.
Yours faithfully, Sd/- 6.12.01 (H.S. Bhardwaj) Dy. Secretary Administration
29. In our view, the Division Bench of the High Court committed serious error by entertaining an altogether new case set up on behalf of the respondents, who had not even prayed for amendment of the pleadings and ranted relief to them by declaring that they are entitled to get benefit of the policy of regularization contained in letter dated 6.12.2001. It is difficult, if not impossible, to comprehend as to how the Division Bench could rely upon the so called policy decision taken by the Government in flagrant violation of the two judgments of this Court wherein it was categorically held that the transactions involving transfer of land after the issue of notification under Section 4 were nullity and the Land Acquisition Officer did not have the jurisdiction to direct allotment of land to the awardees/sub awardees, their nominees/sub-nominees. The basics of judicial discipline required that the Division Bench of the High Court should have followed the law laid down by this Court in Radhey Shyams case and Daulat Mal Jains case and refused relief to the respondents.
30. Another grave error committed by the Division Bench of the High Court is that it ignored the unchallenged findings recorded by the Tribunal and the trial Court that the transferor of the respondents, namely, Shri Ganesh Narayan Gupta did not have valid title over the land and he had no right to secure allotment of 1500 sq. yds. land in the Lal Kothi Scheme and that the order passed by the Executing Court for delivery of possession was liable to be ignored in view of the law laid down in Radhey Shyams case and Daulat Mal Jains case.
32. In our opinion, the High Court had undertaken a wholly unwarranted and unjustified exercise for putting the seal of approval on the so called policy contained in letter dated 6.12.2001 and, that too, by ignoring the law laid down by this Court in Radhey Shyams case and Daulat Mal Jains case. What the High Court has done is to legitimised the transactions, which were declared illegal by thi1s Court and this was clearly impermissible. The High Courts understanding of the so called policy framed by the Government was clearly erroneous. The letter written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur cannot, by any stretch of imagination, be treated as a policy decision taken by the State Government. No document was produced before the High Court and none has been produced before us to show that the recommendations made by the Committee of Ministers had been approved by the State Government culminating in issuance of a policy circular. It is trite to say that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that:
The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
32.1 Likewise, Article 166(3) lays down that:
The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
32.2 : Article 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 and it was observed:
Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:
166. Conduct of business of the Government of a State. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).
33. It is thus clear that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.
34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyams case and Daulat Mal Jains case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.
In Jaipur Development Authority Vs. Radhey Shyam & Ors. (supra), the Apex Court considered the question of allotment of land by the Land Acquisition Officer and laid down that the Land Acquisition Officer has no jurisdiction or power to allot land in lieu of compensation, the decree even, if any, under Section 18 to the extent of any recognition of the directions in the award for the allotment of the land given under Section 11 is a nullity. It is open to the appellant to raise the invalidity, nullity of the decree in execution in that behalf. Accordingly, the execution proceedings directing delivery of possession of the land as contained in the award is, invalid, void and inexecutable. In Radhey Shyam (supra), the Apex Court has laid down thus:-
7. A reading of sub-section (4) of Section 31, in our considered view, indicates that the Land Acquisition Officer has no power or jurisdiction to give any land under acquisition or any other land in lieu of compensation. Sub-section (4) though gives power to him in the matter of payment of compensation, it does not empower him to give any land in lieu of compensation. Sub-section (3) expressly gives power only to allot any other land in exchange. In other words the land under acquisition is not liable to be allotted in lieu of compensation except under Section 31(3), that too only to a person having limited interest. If the contention of the learned counsel for the respondents, that while awarding compensation the Collector (Land Acquisition Officer) has a higher power than the limited power given under sub-section (3) of Section 31, it would run counter to the scheme envisaged thereunder and would result in defeating the public purpose. The problem could be looked at from a different angle. Under Section 4(1), the appropriate Government notifies a particular land needed for public purpose. On publication of the declaration under Section 6, the extent of the land with specified demarcation gets crystallized as the land needed for a public purpose. If the enquiry under Section 5-A was dispensed with, exercising the power under Section 17(1), the Collector on issuance of notice under Sections 17, 9 and 10 is entitled to take possession of the acquired land for use of public purpose. Even otherwise on making the award and offering to pay compensation he is empowered under Section 16 to take possessions of the land. Such land vests in the Government free from all encumbrances. The only power for the Government under Section 48 is to denotify the lands before possession is taken. Thus, in the scheme of the Act, the Land Acquisition Officer has no power to create an encumbrance or right in the erstwhile owner to claim possession of a part of the acquired land in lieu of compensation. Such power of the Land Acquisition Officer if is exercised would be self-defeating and subversive to public purpose.
8. The question then is, whether it is open to the appellant to raise the objections on the execution side as to allotment of acquired land under the award. We have already said that what is executable is only an award under Section 26(2), namely, the amount awarded or the claims of the interests determined of the respective persons in the acquired lands. Therefore, the decree cannot incorporate any matter other than the matters determined under Section 11 or those referred to and determined under Section 18 and no other. Since we have already held that the Land Acquisition Officer has no power or jurisdiction to allot land in lieu of compensation, the decree even, if any, under Section 18 to the extent of any recognition of the directions in the award for the allotment of the land given under Section 11 is a nullity. It is open to the appellant to raise the invalidity, nullity of the decree in execution in that behalf. Accordingly, we hold that the execution proceedings directing delivery of possession of the land as contained in the award is, invalid, void and inexecutable. Accordingly it is set aside.
Question also came up for consideration with respect to same Lal Kothi Area of Jaipur in Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain & Ors.(supra). The Apex Court has held that once the notification of acquisition of land issued under Section 4, declaration made under Section 6 and possession of the land taken under Section 16, the pre-existing right, title and interest of the landowner cease to exist and the same vest in the State free from all encumbrances. Thereafter, allotment of part of the land to the owner, apart from award of compensation is void ab initio. It is not saved by Section 31(3) of the Act or Rules 31 & 36 of the Rules. The Apex Court further laid down that the public policy must be for public good and welfare. It cannot be a camouflage for abuse or misuse of power. Court has to ascertain whether the policy of the Government was a means to fritter away the public property for personal gains. The Apex Court has observed that where land acquired for public purpose under the Land Acquisition Act and the property vesting in the State free from all encumbrances, Government policy to allot a part of the same land to the owner apart from award of compensation would be against public policy. The Apex Court has also laid down that if some persons derive benefit illegally, others similar circumstanced cannot claim the same benefit on the ground of equality as that would amount to perpetuating the illegality through judicial process which Court cannot do. The Apex Court has further held that the Governor runs the Executive Government of the State with the aid and advice of the Chief Minister and the Council of Ministers which exercise the powers and performs its duties by the individual Minister as public officers with the assistance of the bureaucracy working in various departments and corporate sectors etc. Though they are expressed in the name of the Governor, each Minister is personally and collectively responsible for the actions, acts and policies. They are accountable and answerable to the people. Their powers and duties are regulated by the law and the rules. The legal and moral responsibility or liability for the acts done or omissions, duties performed and policy laid down rest solely on the Minister of the Department. Therefore, they are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the legislature. The Minister holds the public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or duties as the holder of public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the authority concerned by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse the office. The Government acts through its bureaucrats, who shape its social, economic and administrative policies to further the social stability and progress socially economically and politically. Actions of the Government should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individual can have and shape the aims to further the social, economic and political goals. The Apex Court has laid down that the limitations of public policies are kept along with the public interest to prevent the exploitation or misuse or abuse of the office or the executive actions for personal gain or for illegal gratification. The Apex Court has further laid down that the public policy cannot be a camouflage for abuse of the power and trust entrusted with a public authority or public servant for the performance of public duties. It is not open to fritter away the public property for personal gain or to misuse public power. The acquired land should be used only for public purpose declared under Section 6(1) of the Act or any other public purpose, and under no circumstances, for any private purpose. The Apex Court in Daulat Mal Jain (supra) has laid down thus:
17. The Court, therefore, would be required to consider whether the policy sought to be relied on and directed by the Minister was to further public good or was a means to fritter away the public property for personal gain or to misuse public power. The object of publication of the notification under Section 4(1) in the Official Gazette is to give notice to the owner that the land is needed for public purpose and he is prevented to create any sort of encumbrance on the land with effect from that date etc. The land, if ultimately acquired, vests in the State under Section 16 or 17(2) of the Act free from all encumbrances. The public policy of the Government should only be to further the public purpose and issue of declaration is the conclusive proof of public purpose under Section 6(1) or any other similar public purpose. Limited public purpose given under Section 31(3), by operation of which the LAO/Collector is empowered, after the sanction is accorded by the appropriate Government, with the liberation of non obstante clause, is to allot any other land, in lieu of money compensation only, to such persons having a limited interest in such land, either by the grant of some other lands in exchange or remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest of the persons having limited interest in the land.
Shri Kamlakar Sharma learned senior counsel has submitted that since inspite of decision of the Apex Court certain persons have been allotted land now as such, appellants are being discriminated. This submission of the learned senior counsel is not to be accepted. It is trite law that negative equality cannot be claimed when in accordance with law such land cannot be obtained. Obviously, it is not open to the appellants to base the plea on Article 14 of the Constitution of India so as to perpetuate illegality in view of clear pronouncement of the Supreme Court.
Counsel has submitted that appellants may be entitled for compensation. We decline to comment on the said aspect. It is not appropriate proceedings to comment on such aspect. That apart, petition has been filed after 48 years of the award having been passed.
In view of above, we find no merit in the intra-court appeal. It is hereby dismissed.
(NARENDRA KUMAR JAIN-I)J. (ARUN MISHRA)CJ. GS
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA